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Wednesday, April 29, 2009

The idea that there won't be some sort of investigation into the Bush administration's policy of torture is probably a fantasy. It's just too big to be ignored. While President Obama has said that he's not in favor of investigations, he hasn't done a whole lot to tamp down talk of them. The most common assessment of the reasoning behind Obama's stance is that he's afraid that it'll make it harder to get policies he wants through Congress. But this doesn't seem to make a whole lot of sense, since the very people who'd be most angered by torture investigations -- i.e., Republicans -- haven't been in the mood to participate in bipartisanship. For example, the stimulus bill passed through Congress with a grand total of three GOP votes; zero in the House and three in the Senate. As it is, Republicans are already doing their worst -- it's hard to imagine how it would be possible for them to be more obstructionist. The GOP actually filibustered a bill to prevent China from importing toys with lead paint. They're obstructing everything. As a result, angering the Republican party would be without any real consequence. They can fume and stomp around and throw tantrums on talking head shows, but they didn't keep any ammo in reserve. In a very real sense, they don't have anything left to threaten anyone with.

If Obama's worrying about torture investigations spoiling his new era of post-partisanship, he can stop worrying. The Republicans have no interest in it anyway.

But I suppose the Obama administration loses nothing by being standoffish about torture probes and would gain nothing by being aggressive. One way or another, it's looking more and more like it's going to happen. The direct involvement of the President isn't really required.

Still, some leadership would be nice. As it is, Congress is kind of wandering around offering competing solutions -- some good, some bad. One of these solutions will be applied and there's no guarantee that it'll be one of the good ones.

Members of the House Judiciary Committee asked attorney general Eric Holder on Tuesday to appoint a special counsel to investigate and, if appropriate, prosecute Bush administration officials involved in decisions that led to torture of detainees held in counter-terrorism efforts. In a letter to Holder, the congressmen write that memos released by the Obama administration last week confirmed that legal justifications for interrogation techniques like waterboarding came from high-up administration officials.

"During your confirmation hearings, you testified that waterboarding is torture," the letter says.

"This letter makes official our views on the necessary procedure in investigating those U.S. officials who allowed or actively instructed others to commit torture," said a statement from Rep. Jerry Nadler (D-N.Y.), who along with Rep. John Conyers (D-Mich.) were the letter's principal authors. "Because the United States is bound by its own laws and by international treaty, we are obligated to investigate and, where necessary, to prosecute those who have violated the laws against committing torture - whether by ordering it or committing it directly."

"[T]here can be little doubt that the public interest will be served by appointment of a special counsel," the letter reads. "The authorization and use of interrogation techniques that likely amounted to torture has generated tremendous concern and outrage in this country, and has harmed our legal and moral standing in the world."

If we're going to get serious about investigating and -- if need be -- prosecuting for torture, the time to get on the stick is now. Amazingly, there's a statute of limitations for torture. And that limit is five years after the commission of the crime. It's possible to extend the statute of limitations -- or even eliminate it -- but the easier solution would be to get it done before the limit expires. Given the instances of torture that we know of, that means prosecution this year. At least, under US statute -- international law has no limitation.

Another solution is a bad one. In fact, it's exactly what you'd do if you didn't meet the statute of limitations. And that solution is Senate Judiciary Chairman Patrick Leahy's "Truth Commission." A Truth Commission is a route third world nations take when prosecution has become completely impossible. It's the last resort and it's the first thing Leahy wants to try. A commission would grant immunity from prosecution to anyone testifying for anything other than perjury. After the statute of limitations expires, it'd make sense. But before then, it's a "get out of jail free" card.

And you'd think that Leahy were trying to beat the clock on the statute. He wants to have his commission pretty much yesterday.

Senate Judiciary Chairman Patrick Leahy (D-VT) plans to proceed with a special commission to investigate alleged Bush administration abuses of power, despite lacking President Barack Obama’s support, according to a report Tuesday.

[...]

President Obama, meanwhile, has expressed disinterest in investigating the activities of his predecessor, saying it’s time for the country to move on. Senate Majority Leader Harry Reid (D-NV), says he doesn’t want the commission to begin until an inquiry headed by Senate Intelligence Chairwoman Dianne Feinstein (D-CA) examines the Bush administration’s legal defenses of torture techniques.

“Leahy plans to move ahead with his proposal anyway," Politico reports. "While he has not found a GOP co-sponsor for legislation creating a truth commission, Leahy is expected to begin circulating a draft soon."

And all Leahy really needs to find to get his co-sponsor is a Republican who's not stupid. Since it's pretty obvious that hoping for no investigations at all is more than a little unrealistic, Leahy's Truth Commission is the next best thing. Once it finally sinks in on the right that a torture probe is going to happen, Leahy's proposal is going to become really popular among more realistic Republicans and even former Bush administration officials.

In the end, the best idea would be to treat this possible crime as a possible crime. This isn't some special circumstance for which the law leaves us totally unprepared. We don't have to take extra-legal measures to deal with something that the law covers very well. We don't have to pretend that the law only applies to those less powerful than former White House officials. We can do everything the way we're supposed to do it -- the way we're pretty much required to do it.

Attorney General Holder should honor the request for a special counsel to investigate torture. And Sen. Leahy's Truth Commission go to the backburner -- for a extra-legal commission without consequences, what's the rush? The truth will be just as true next year or ten years from now as it is today. It's not going anywhere -- it doesn't have a shelflife, it's not going to spoil. If we can't get anything other than a Truth Commission, then we start putting one together.

Until then, we really ought to do what is required of us. We really ought to obey the law.